Generalized consent to search a car in Texas apparently includes having to endure the officer choosing to move it to a different location to remove the gas tank. Montanez v. State, 2006 Tex. App. LEXIS 9751 (Tex. App.–Waco November 8, 2006), on remand from Montanez v. State, 195 S.W.3d 101, 109 (Tex. Crim. App. 2006) (decision on other grounds: standard of review).

Consent implies permission to remove the gas tank! Really? At a traffic stop? With no reasonable suspicion? What do the lawyers out there have to say about this?

The idea of being stopped for a traffic violation then finding yourself sitting around while police literally pull your car apart bolt by bolt - even though no one has reason to suspect you of a crime - sounds like the plot from a bad comedy movie come true. Where does such sweeping consent end?

About eleven minutes after stopping the defendant because his license plate was obscured and the license plate light was not working, a Narcotics Task Force officer “felt like some type of illegal activity was occurring” and asked for consent to search the car. More from the opinion’s recitation of the facts:

He “then started a basic search of the vehicle.” He first looked at the undercarriage of the car and noticed a fresh coat of paint, which he testified is “unheard of on older model vehicles.”… When he lifted the carpeting in the rear of the van, he noticed “a lot of screws missing that shouldn't have been missing” and “brand-new bolts” in two areas… (He) told the canine handler that he knew there were drugs in the car but could not find any.

Wow. First we have the court affirming that a “basic search” can include looking under the car, and lifting the carpet??? Does that make you want to say “go ahead and search my car?” You don’t have to be hiding dope to find that objectionable.

What about the case details regarding the “voluntariness” of taking the defendant’s car to the task force headquarters? Here’s the money quote from the opinion… The defendant was told he would have to follow the officer…

...back to Nacogdoches so he could inspect the gas tank. (The officer) stated, “You have to follow me. If you go any other direction, you will be under arrest. You are under arrest right now. You comprende?” Montanez replied that he understood. According to (the officer), Montanez did not indicate in any way at this point that he wanted to withdraw his consent to search. The entire roadside encounter lasted about one and one-half hours.

Didn’t indicate that he was withdrawing consent? He was just told that if he failed to comply with the orders of the armed man in uniform that he would be arrested. Then he was told that he was actually under arrest. If he had objected at that point, he was subjecting himself to prosecution for evading, resisting and/or failure to obey a lawful order.

I wrote a while back about the Schneckloth v. Bustamonte requirement that consent be voluntary and a Kentucky appellate court bold enough to suggest that upholding a patently ridiculous search was untenable in part because it would “discourage future citizen cooperation” when it was really needed.

Is there any wonder that criminal defense lawyers advise folks to not submit to any search? No matter what the circumstances are? OK, do you have 90 minutes to waste while a cop tears your car apart?

What most lay people fail to understand is that the Police are there to gather evidence against you, do not think they are there to help.

Cheryl -
May 13, 2008 5:24 AM

I live in Huntsville Texas and my 18 year old son was arrested coming home from a movie with a friend when thay thought it would fun hunting for open cars, what he told me was that it was a "random act" (what was he thinking?)and while sitting in the back of the police car he told the guy he was arrested with that "all he wanted to do was go home smoke a joint, pop a pill and call his girl",I don't agree with the act nor the statment but what I want to know is how did this statment lead to the cops coming to my home? When I arrived home from my day the cops were sitting outside my home waiting for me and not allowing me to inside, the officer told me that the my son had been arrested and that thay had reason to belive that drugs were inside my my home. I they found them I could be charged with possion. Should I have waited for the warrent or allowed them inside? But thay went directly to the rear exit of my home were thay found some items that to me clearly did not belong to my son, under a hat and on top of a sweater was found a wallet, cell phone, 1/2 oz of Marijuana and about 20 pills of Xanx. After that the officer continued inside were nothing was discovered. The officer searched my son's room find his wallet,state ID, Student ID and other things normally found a wallet, along with a cell phone, no additional items related to the reason for a search. How could this hurt my sons case? What could be the outcome? I don't have money for legal assistance.

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